Vicarious Liability Upheld For Public Performance

In an unpublished decision by the Ninth Circuit Court of Appeals, the Court upheld copyright infringement claim for the public performances of copyrighted musical compositions. Range Road Music, Inc. v. East Coast Foods, Inc. (Case Nos. 10-55691 and 10-55800 – 9th Cir. Court of Appeals – Jan. 12, 2012 decision). An investigator testified that Coltrane standards were being performed by a live band at the Sea Bird Jazz Lounge and that a disc jockey played four Hiroshima songs from a CD.

Defendants claimed that the investigator’s report and declaration should be inadmissible as he was not an expert witness. However, the Court rejected the claims finding that “identifying popular songs does not require “scientific, technical, or other specialized knowledge” under F.R.E. 702.

In addition, Defendants East Coast Foods, Inc. and Herbert Hudson claimed that they could not be liable for vicarious infringement because the Sea Bird Lounge was owned by an independent corporation – Shoreline Foods. The Court rejected this claim finding that Defendants exercised the requisite control over the direct infringer and derived a financial benefit from the public performances. The liquor license at the Sea Bird Jazz Lounge was owned by East Coast Foods. Defendant Hudson was the president of both East Coast Foods and Shoreline Foods and had the authority to hire and fire employees and to prevent acts from appearing at Sea Bird Jazz Lounge. The fact that Hudson had the legal and practical right to stop the infringing conduct played a factor in establishing vicarious liability.

The Court also noted that the Defendants could have purchased an ASCAP license as ASCAP had urged them to over the last 7 years.

Lost in the Moment?

Super Bowl advertisements tend to be the most memorable ads of the year. 

Last year, a Chrysler commercial prominently featured Detroit native Eminem and the background music was one of his hit songs, “Lose Yourself.” 

Last month Eminem's publishing company, Eight Mile Style, filed a lawsuit in a German court for Audi’s use of the same song in a video similar to the Chrysler ad promoting the 2012 Audi A6 Avant.

Audi claims the video is not an advertisement and has not aired in the United States.  According to Audi, the video was shown at a press event in Germany.  The video has since been posted on YouTube and can be viewed here.

While the Audi video has not appeared on television or radio in the U.S., jurisdiction and infringement may be hard to establish for a copyright infringement action in the U.S.  This is likely why Eight Mile has filed suit in Germany. 

However, it poses an interesting question...if the YouTube video is available in the United States, could a copyright infringement action be brought in the United States? 

Would Audi had to have authorized the copy of the video to be allowed to be posted on YouTube in order for a U.S. lawsuit to be brought?  I do not believe a U.S. lawsuit will be filed but I will keep up to see what happens in the German action.

Moving Targets

UPDATE: The lawsuits brought for allegations of illegal downloads of the movie “The Hurt Locker” are moving forward. Last year, the U.S. Copyright Group filed a copyright infringement complaint with a federal court in Washington D.C., naming 5,000 unidentified defendants.

Earlier this month, the Copyright Group filed multiple additional complaints for infringement of the movie across the country. Unlike their previous lawsuit, these lawsuits name individual Defendants.

The lawsuits were also filed in courts that have jurisdiction in the areas where the alleged illegal downloading occurred. There are several different venues: federal courts in Massachusetts (where a favorable judgment in the music downloading context already took place), Minnesota (where the Jammie Thomas music download case resulted in favorable jury results for copyright holders) and Colorado, among others.

News reports indicate that the individuals named in the lawsuits are those who previously refused to settle with Plaintiffs. (The reports indicate offers for settlement in the $1,500-$3,000 range.)

Will these lawsuits move forward? Will Defendants settle now that they have been named in lawsuits?

UFC Grapples with Justin.tv over Live-Streaming of Events

Zuffa, Inc., the parent company of Ultimate Fighting Championship has filed a lawsuit in the District Court of Nevada for copyright infringement against Justin.tv. Justin.tv is a website that allows for the streaming of live video through its web portal.

UFC alleges that its pay-per view events are being broadcast on Justin.tv. UFC hired third party vendors to send petitions to take down over 200 video feeds of the October 23, 2010 pay-per view event UFC 121. According to news reports, UFC claims that over 50,000 watched illegal streaming video of UFC 121.

Justin.tv has a terms of use which includes DMCA takedown notices. UFC alleges that Justin.tv’s response has been inadequate. According to a press relase on the UFC website, Zuffa contacted Justin.tv several times over almost a two-year span in attempts to prevent illegal uploading.

It seems likely that Justin.tv is likely to rely on the DMCA safe-harbor provision similar to the arguments made by YouTube in the Viacom lawsuit.

If the Damages Were Not Big Enough....

Following up on the recent lawsuit between Oracle and SAP and the $1.3 billion in damages awarded Oracle (the largest copyright damage award in U.S history), the parties were fighting over 2 other important remedies in copyright infringement actions - interest and attorneys fees.

An award of costs may include attorneys fees to a prevailing party under Section 505 of the Copyright Act. It has been reported that Oracle is seeking over $100 million in attorney's fees.

In addition, Oracle sought over $200 million dollars in interest. SAP argued that interest need not be paid. The court ruled that interest would be awarded but would not be the amount that Oracle sought but based on Treasury rates and calculations would be a much smaller figure (approx. $16 million).

A Twist of LimeWire - Infringer Pirated

Following the decision that LimeWire’s peer file-sharing network infringed copyrights in a lawsuit filed by the Recording Industry Association of America, Judge Kimba Wood issued a permanent injunction against the company on October 26, 2010. The injunction was granted with LimeWire's consent.

In the 17 page order, the Court did go through the permanent injunction factors from the Salinger case in the Second Circuit. You can see the entire injunction here.

The Court found that LimeWire would be unlikely to be able to pay the statutory damage award. If LimeWire were not permanently enjoined, it would continue to facilitate “generations of infringement.” The RIAA would also be harmed because LimeWire would offer the copyrighted works that plaintiffs sell for free, thereby significantly affecting the market for the copyright owners’ works.

The Court also found the statutory damage award was not an adequate remedy at law especially to prevent future infringements and this factor favored a permanent injunction.

Because the Court found LimeWire’s business model was infringement, the balance of the hardships clearly favored plaintiffs. Finally the Court found that a permanent injunction serves the public interest by upholding copyrights and the harm caused by LimeWire.

In effect, LimeWire’s network has been shut down.

However, according to news reports, there is a software sharing program called LimeWire Pirate available on downloading sites on the Internet.

LimeWire has posted a notice on its website claiming it has recently become aware of third parties using the LimeWire name. The notice also includes a cease and desist to all parties using the LimeWire software, name and trademark.

Contributory Infringement or Settlement Negotiations?

On Saturday, Cablevision and NewsCorp, owner of the Fox television stations, settled their ongoing dispute over programming fees.

During the two week long battle, in which over 3 million Cablevision customers in the New York/Philiadelphia area were without News Corp's channels, Fox apparently sent a cease and desist letter to Cablevision accusing the company of copyright infringement.

Fox is accusing Cablevision of contributing or vicariously infringing on its copyrights by having the Cablevision service representatives advising its customers how to obtain content from Fox (and its other networks such as National Geographic Channel and Fox Business) via networks such as Ivi.

Ivi offers a subscription based service which delivers television live over the internet. Unlike websites such as Hulu, where someone can access episodes of previously aired shows, the Ivi player shows the original broadcast of whatever the television stations are airing at the time.

No specific companies were named in the letter, which can be seen here. However, Fox is part of a group of broadcasters, who include ABC, NBC, and CBS among others, who last month sued Ivi for copyright infringement. The case is WPIX Inc v. Ivi Inc, 10-7415, Southern District of New York.

Fox will likely need to show that Cablevision knew that it was inducing others to infringe on Fox’s copyrights. It may also need to show that Cablevision knew or instructed its customer services representatives to advise its customers how to obtain the programming.

Could the actions of Cablevision be further complicated if Cablevision was aware or received complaints about the Ivi website as either an Internet provider (unlikely due to the safe harbor provisions as currently interpreted by the Court in Viacom v. YouTube) or as a content provider themselves (Cablevision's subsidiary Rainbow Media Holdings owns such networks as AMC, IFC and the Sundance Channel)?

Was this a mere ploy by Fox to settle on more favorable terms? Could Cablevision bring a declaratory judgment action for a finding that it is not infringing on Fox’s rights? Now that an agreement has been reached by Fox and Cablevision, will Fox follow through or stop pursuing the claim for copyright infringment?

The Settlement of Summer - Don Henley v. Chuck DeVore

Earlier this month, Don Henley (along with fellow songwriters Mike Campbell and Danny Kortchmar) settled a copyright lawsuit with California State Assemblyman and former Senate hopeful Chuck DeVore.

Copyright Chronicle has been following this case, which involved two music videos made by DeVore’s campaign using the music and lyrics from Don Henley’s songs “The Boys of Summer” and “All She Wants to Do Is Dance.” DeVore changed “The Boys of Summer” to “The Hope of November,” with lyrics mocking Barack Obama and “All She Wants to Do Is Dance” to “All She Wants to Do is Tax,” with lyrics aimed at Senator Barbara Boxer.

In DeVore’s cross-motion for summary judgment, he claimed the fair use defense. According to DeVore, the use of Henley’s songs was intended to parody Henley and the liberal bias in Hollywood. (I’ve previously mentioned how the parody defense would be a tough sell for DeVore considering the subjects of the commentary in his two songs are not the subjects of Henley’s songs.)

In June, U.S. District Judge James Selna rejected DeVore’s parody claims, ruling that DeVore had not established a fair use defense, and granted Henley summary judgment on the copyright infringement claims. A full-text of the decision can be found here.

A large portion of the Court’s decision focused on the parody inquiry and the distinction between parody and satire. While parody of a work is considered fair use, the Court noted that many courts remain split over whether parody of the author of a work is also protected. In the decision, the Court framed its analysis of DeVore’s songs with the assumption that “parody-of-the-author” would constitute fair use. Under this framework, the Court found that “Dance” was purely satire, as the song “makes no implicit or explicit reference to Henley or Kortchmar, much less ridicules them” (p. 17). “November” was found to have parodic element, as the narrator in both songs express disillusionment with politics; however, it was only a minor part and therefore the extent of DeVore’s use was not justified.

The Court also found that DeVore’s use of the songs as campaign advertisements was commercial. In his opposition brief, Henley argued that the videos were intended to increase campaign donations (each of the videos contained links to DeVore’s campaign website and the emails publicizing the videos linked directly the donation page on DeVore’s website). See Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539; 105 S. Ct. 2218; 85 L. Ed.2d 588; 53 U.S.L.W. 4562.

The court agreed with Henley. Despite noting that courts have normally ruled campaign advertisements as non-commercial speech (See Mastercard Int’l Inc. v. Nader 2000 Primary Comm., No. 00 Civ. 6068 (GBD), 2004 WL 434404 at *12 (S.D.N.Y. Mar. 8, 2004)), the Court based their decision on the Ninth Circuit case Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 110, 117 (9th Cir. 2000):

“Like the church in Worldwide Church, which stood to gain parishioners through the unlicensed use of the plaintiff’s copyrighted work, DeVore and Hart stood to gain publicity and campaign donations from their use of Henley’s music. In fact, the videos contained links directing viewers to the DeVore campaign website, encouraging viewers to directly donate. Thus, under the logic of Worldwide Church, the Defendants “profited” from their use in the sense that they benefitted or gained an advantage without having to pay customary licensing fees to the Plaintiffs. 227 F.3d at 1118.” (p. 19)

Despite deciding for Henley on the issue of copyright infringement, the Court declined to rule on whether DeVore’s infringement was willful. The Court also rejected the Henley’s Lanham Act claims and granted summary judgment on the issue in favor of DeVore.

Catcher in the P.I. (preliminary injunction)

The April 30, 2010 decision by the Second Circuit has been the subject of many reports – predominantly regarding the likelihood of success for the Trustees of the J.D. Salinger literary trust. However, there is a separate and independent significance within the decision – the scope of the eBay decision by the Supreme Court [547 U.S. 388 (2006)] on injunctive relief. The Second Circuit’s decision remanded and vacated the preliminary injunction order (with a ten day stay to allow for Salinger’s estate to seek a temporary restraining order).